Legal humor. Seriously.

Posts from October 2008

October 31, 2008

The Supreme Court did take up the "emergency" motions for reconsideration in the Carcieri case at its Friday conference today, and denied them. That means it will not decide whether Joe Larisa or Ted Olson gets to argue for the petitioners, and that may mean there will be blood on the podium on November 3 if petitioners still have not been able to work it out.

At this point, whoever is able to broker a deal here could put his or her name in for the Nobel Peace Prize.

May I suggest a quick match of rock-paper-scissors? At least the ground rules are fairly well established, and there is an international regulatory body that could supervise the event.

The furious (and now completely ridiculous) battle over which attorney gets to argue Carcieri v. Kempthorne for the petitioners in the Supreme Court continues to rage, and it now looks like it may be resolved by the Court itself on Friday.

Because the U.S. Supreme Court doesn't have anything better to do.

As you may recall (if you were here two days ago), the petitioners and their attorneys (Joe Larisa and former SG Ted Olson) have been bickering about this for months. They actually filed a "motion for divided argument," asking to split up the 30 minutes; but the Court denied the motion. Olsen then tried to go ninja: he just filed a form claiming that he (alone) would argue for the full 30 minutes -- only to find out that Larisa had tried the same trick. Unamused, the Court's clerk told them to go work it out and submit one name by Thursday. But as we learned last time, not only could the parties not work it out, even by coin toss, they couldn't even agree on the rules for the coin toss.

Things have not improved. Larisa sent the Court a letter on Monday saying that since it didn't look like the parties would be able to agree by Thursday, he was filing an "emergency motion to reconsider the motion for divided argument." This caused the other side to blink. Olson sent a letter later that day saying that Rhode Island had magnanimously decided it would not object to giving Larisa ten of the 30 minutes. Larisa agreed. A breakthrough appeared imminent. But those who had hoped for a resolution (a group that does not include me) had those hopes dashed when the state Attorney General, apparently in defiance of the governor, told the Court that he would not agree to give up even the ten minutes, and would instead make "a renewed effort to select one counsel."

At last report, the Court had confirmed that it would take up the "emergency" motion at its private conference on Friday, October 31 (Halloween).

October 30, 2008

Police reports posted today show that attempts to enforce a Florida ordinance against saggy pants have been less fruitful than sponsors may have hoped. In the nine weeks since enforcement of the Riviera Beach ordinance started, police have arrested and/or cited only 17 offenders, and 12 of those were nabbed in the first two weeks.

Overall, it appears that police are enforcing the ordinance less than twice a week, which would mean that on average (and this is a generous estimate) the waistlines of Riviera Beach have been raised less than two inches per day by the crackdown, and much less than that in percentage terms. And that likely overstates the law's effect, since The Smoking Gun reported that two of the men arrested most recently were repeat offenders who may never have hiked their pants up at all.

October 29, 2008

As November draws near, most of the country is debating who will get to sit in the Oval Office; but over in a corner of the highest level of the American legal community, the fight is over who will get to stand before the Supreme Court to argue Carcieri v. Kempthorne on November 3.

What's that case about, you ask? The short answer is who cares, but for those of you still reading this sentence the questions presented have to do with when the federal government can take land from states and hold it in trust for Indian tribes. In this case, the government took land from Rhode Island and gave it to the Narragansett tribe. Rhode Island and the affected town want it back and are appealing, supported by (apparently) every other U.S. jurisdiction in which Indians still have something worth taking. Much of the interest in the case has to do with federalism concerns.

Possibly more interesting to you, though, is that the petitioners and their attorneys can't agree who will argue the case. The town wants its attorney, Joseph Larisa Jr., who has been handling the case for the last ten years. But the governor and the state AG's office want Ted Olson (left), the impressively-jowled former Solicitor General who argued for Bush against Gore. These kinds of disputes do come up but are typically worked out by attorneys acting like relatively grownup professionals, or, rarely, at gunpoint. But in this case the bickering and posturing have gone on for many moons.

Under Supreme Court rules, each side typically gets just 30 minutes for argument and only one lawyer per side will be heard, unless the Court rules otherwise. In August, the parties actually filed a "motion for divided argument," but the clerk denied it, telling them to work it out.

Larisa then proposed that the matter be settled with a coin toss. The others reacted with horror. "We don't think it's appropriate to engage in a coin toss with a part-time solicitor," sniffed full-time state spokesman Michael Healey. Accordingly, later that day the governor's counsel proposed two coin tosses. Under that plan, Larisa would flip with a representative of the governor's office, and if he won that one, would then flip with the AG's office. This plan, which had the virtue of being entirely unfair to Larisa, was rejected.

Two weeks passed. On October 23, with pressure mounting, somebody called up experienced Supreme Court advocate Laurence Tribe to ask his opinion. His sage advice: coin toss. Actually, that was his fallback position. "The obvious solution," Tribe said, "is for Ted Olson to argue the case" because of his experience before the Court. "But if they find that unpalatable," he continued, "they [Larisa/the town] should flip a coin and grow up." Of course, they had been willing to flip a coin, but the state insisted they flip two.

Then the state developed a new position: the dispute should be resolved the American way, by voting. "Democracy was an adequate enough framework to form the United States of America," said Healey, although you could argue it also took a couple of wars to do that, "[and] it should be an adequate enough framework to decide" this dispute. But since the state's democratic framework involved a vote of the three parties -- two of whom wanted Olsen -- it was not adequate enough to fool Larisa. This sent Healey back in front of a microphone. The town "is rejecting the democratic process and is saying it prefers a game of chance," he said. "The attorney general and the governor do not think there should be games of chance in Charlestown," Healey continued, although they were apparently okay with it if the rules ensured they would win. Which one is the American way again?

The report also quoted Alan Gura, the 37-year-old lawyer who won the recent Second Amendment case in his very first argument before the Court. "The justices do not decide these cases based on personal relationship with attorneys," Gura said. "There is no substitute for knowledge of the record," which Larisa would have here and Olson would not. Therefore, in Gura's professional opinion, the course was clear: "I think they should flip a coin."

Petitioners have until tomorrow to tell the Court who is going to argue.

October 28, 2008

In the November issue of the Atlantic, Jeffrey Goldberg offers more evidence that airport security is mostly to make it seem like somebody is doing something, and is not in fact protecting you much:

[B]ecause I have a fair amount of experience reporting on terrorists, and
because terrorist groups produce large quantities of branded
knickknacks, I've amassed an inspiring collection of al-Qaeda T-shirts,
Islamic Jihad flags, Hezbollah videotapes, and inflatable Yasir Arafat
dolls (really). All these things I've carried with me through airports
across the country. I've also carried, at various times: pocketknives,
matches from hotels in Beirut and Peshawar, dust masks, lengths of
rope, cigarette lighters, nail clippers . . . and, of course, box cutters. I was selected for secondary screening
four times—out of dozens of passages through security
checkpoints—during this extended experiment. At one screening, I was
relieved of a pair of nail clippers; during another, a can of shaving
cream.

If terrorist groups now sell "branded knicknacks," does that mean we won?